ADMINISTRATIVE LAW

Stacie Ayn Murphy Corcoran
2011 graduate of Suffolk University,
practicing in Mass. and NH

No. 2018-0468

July 19, 2019

Affirmed

  • Issue: Did the New Hampshire Site Evaluation Committee err in denying the petitioner’s application for a “Certificate of Site and Facility.”

The Court reviewed the record and concluded that the Subcommittee’s findings were supported by competent evidence, were not erroneous as a matter of law and that the petitioners would not have “sustained their burden on appeal to show that the Subcommittee’s order was unreasonable or unlawful.” RSA 541:3. First, the Court reviewed the procedural background of the Subcommittee including: the motions received, the number of hearings held, witnesses heard, exhibits received, the vote taken unanimously by the Subcommittee and its decision to deny the application in a 287 written decision.

Next, the Court looked at the statutory framework, evaluating: the purpose, required findings, burden of proof and orderly development of the region. The Subcommittee based their review on RSA 162-H and had broad discretion in making a determination to issue a Certificate as long as Subcommittee makes a finding on the criteria and according to the rules in RSA 162-H. The Court determined that the applicant has the burden of proof to make their showing by a preponderance of the evidence and that N.H. Admin. R. Site 301.15 applies in determining whether the proposal will unduly interfere with the regional development. Related to those areas, the Subcommittee found the petitioner’s reports and testimony in many cases lacked credibility or there were content issues with the reports that were submitted.

Then, the Court addresses the petitioner’s argument that the Subcommittee violated RSA 162-H ”by failing to consider all relevant information, including mitigating measures and conditions and by failing to weigh potential impacts and benefits.” The Court disagrees with the petitioner concerning deliberate aesthetics, finding they discussed aesthetics related to the impact of the project on community uses, how it would “influence land uses in the vicinity” and providing numerous examples from the record of the various town’s Master Plans. They reasoned that the Master Plans represented the views of the communities. Next, the Court addresses the petitioner’s argument that the Subcommittee failed to consider mitigation measures and conditions that would have reduced or eliminated project impacts. The Court found that the Subcommittee had not ignored mitigation measures that were offered by the petitioners but found the petitioner’s analysis inadequate. Therefore, the Court held that the Subcommittee didn’t have to craft its own mitigation measures to “make up for the failure to satisfy the statutory and regulatory criteria” that would shift the burden to the Subcommittee. The Court disagreed with the petitioner that the Subcommittee failed to weigh the evidence and make a determination on the capacity market benefits, finding that the Subcommittee did not find the petitioner’s expert credible.

Next, the petitioner asserted that the Subcommittee’s application of the orderly development standard was “both unlawful and unreasonable under RSA 541:6 and unconstitutional.” Reviewing the statutory teams and regulatory standards, the Court found that the petitioner’s argument was “insufficiently developed” for appellate review, but goes on to highlight that the regulations identify the definition of the terms, the documents and information that are required for the petitioner to satisfy their burden of proof. The Court finds that the Subcommittee based its denial of the application on the record and not on an ad hoc basis because they were in the best position to measure the “persuasiveness and credibility of the evidence” and their findings could reasonably be made based on the evidence presented. Then, the Court turns to the right-of-way, finding that their prior decisions were not an “administrative gloss” and that rule is not applicable here. Even though the project is within an existing right-of-way, the Court agreed with the Subcommittee that it was required to analyze the characteristics of the project to assess the impact of the project on land usage.

Finally, the Court found that record does not support the petitioner’s contention that the Subcommittee imposed on them an affirmative burden to address and resolve the views of the different governing bodies. The Court further found that the petitioners failed to demonstrate by a preponderance of the evidence that the project would not unduly interfere with the “orderly development of the region” because the Subcommittee took all of the relevant information into consideration and found the Municipal testimony persuasive.

 

McLane Middleton, of Manchester (Wilbur A. Glahn, Barry Needleman and Jeremy T. Walker on the brief and Mr. Glahn orally) for the petitioners, Northern Pass Transmission and Public Service Company of New Hampshire d/b/a Eversource. Gordon J. MacDonald, attorney general (Christopher G. Aislin, senior assistant attorney general, on the brief and orally) representing the public interest. City Solicitor’s Office, of Concord (Danielle L. Pacik, deputy city solicitor, on the joint brief and orally), for intervenor City of Concord; Mitchell Municipal Group, of Laconia (Stephen M. Whitely on the joint brief); for intervenors Towns of Deerfield, Littleton, New Hampton, and Pembroke; and Drummond Woodsum, of Manchester (C. Christine Fillmore on the joint brief), for the intervenors Towns of Bethlehem, Bristol, Easton, Franconia, Northumberland, Plymouth, Sugar Hill and Whitefield.